H(S) v DPP
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE Ó Caoimh |
| Judgment Date | 07 July 2004 |
| Neutral Citation | 2004 WJSC-HC 4821 |
| Court | High Court |
| Date | 07 July 2004 |
2004 WJSC-HC 4821
THE HIGH COURT
and
Citations:
O'C (P) V DPP 2000 3 IR 87
D (D) V DPP UNREP SUPREME 19.5.2004
COSGROVE V IRELAND 1982 ILRM 48
C (P) V DPP 1999 2 IR 25
Constitutional law - Criminal law - Judicial review - Order of prohibition - Sexual offences - Delay - Absence of witness - Whether real or serious risk of unfair trial - Whether order prohibiting trial should be granted - Bunreacht na hÉireann, 1937 Article 38.1.
The applicant had been charged with sexual offences allegedly committed some years previously. The applicant brought judicial review proceedings seeking to prohibit his trial from proceeding. The applicant claimed that the lapse of time between the commission of the alleged offences and the date of trial was so great that it gave rise to an unavoidable and incurable presumption of prejudice against him. Furthermore it was claimed that the delay had deprived the applicant of a prospective witness. Detailed evidence was submitted as to the reasons why the complainants (of whom there were four) had delayed in reporting the sexual abuse. All four complainants had alleged that the abuse had occurred while they were pupils at a school and the applicant was a teacher.
Held by Ó Caoimh J in refusing to prohibit the trial. In the light of the evidence tendered it must be concluded that the delay complained of was one which was referable to the applicant’s own conduct having regard to the test propounded in the PC case. The issue in relation to the unavailability of witnesses was somewhat remote. Notwithstanding the delay that had occurred the circumstances were not such that there was a real or serious risk that a fair trial could not be had.
Reporter: R.F.
MR. JUSTICE Ó Caoimh ON WEDNESDAY. 7TH JULY 2004
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.
APPEARANCES
For the Applicant:
MR. KAVANAGH
For the Respondent:
MR. COLLINS (Not Present)
(Not Present)
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services
| MR. JUSTICE Ó CAOIMH; | By two orders of this |
| court on 11th march 2002 |
and 29th July 2002, the applicant was given leave to apply by way of applications for judicial review for injunctions restraining further prosecution of him on 50 charges of indecent assault alleged to have been committed on four complainants, all of whom allege that they were abused by him when they were in his care and under his dominion, and in circumstances where he was a teacher at a school in Dublin, and in circumstances where the abuse is alleged to have taken place when the complainants were of tender ages, between 7 and 10 years of age.
It is clear from the evidence before this court that no former complaint was made by any of the complainants until May of 1999: in the case of the complainant JM until May 1999; 23rd march 2000 in the case of SF; 21st February 2001 in the case of EB, and 30th August 2001 in the case of LW.
The allegations relate to abuse having been carried out in the classroom and not in private between the applicant and the complainants. while the four complainants have sworn affidavits in these proceedings, three of them have been cross-examined on their affidavits. Lw has not been examined, but in his affidavit he has detailed the abuse perpetrated upon him on two occasions and the fact that he witnessed others in the class. He indicates seeing another boy being abused. He confirms the other three complainants as having been in the class and indicated the effect that the abuse has had on him, including depression, humiliation and embarrassment. He explains why he did not report the abuse. In this regard what he says in his statement to the Gardaí includes as follows:
"As a teenager I often felt depressed. I attributed this to the abuse I suffered at Haran's hands. I never reported any of this back then because I felt humiliated and embarrassed. Also back then I feared that I wouldn't be believed. I moved to Canada when I was 21. I often thought about reporting these events, but I just tried to put it out of my mind and get on with my life. I decided to come forward about this now because I heard that Haran was investigated by the Gardaí. I purposely came home now to tell you what happened to me."
Also in his affidavit he addresses the issue, where at paragraph 8 he says:
"As a teenager I often felt depressed and I attributed this to the sexual abuse I suffered at the applicant's hands. I was reluctant to discuss the matter with anyone because I felt humiliated and embarrassed. I also felt I would not be believed if I made a complaint to persons in authority. I married when I was 19 years of age and my wife and I moved to Canada when I was 21 years old. I coped with the abuse by putting it out of my mind. I tried not to think about it. I would sometimes recall the abuse but I made every effort to forget it and put it out of my mind. I also felt I could not discuss the abuse with anyone in authority without the permission of the other boys in my class, whom I had seen being abused by the applicant, since I felt they were also ashamed and concerned about how such allegations might be viewed by others and what others might think of them."
He was seen by Dr. Mellisa Dermody. she has prepared a report for this court in which she expresses her opinion to the effect that, having read the Book of Evidence and meeting with LW on two occasions, for approximately two and a quarter hours, she concluded that: "It was reasonable in the light of his life circumstances that he made a statement to the authorities as soon as he was able."
Under cross-examination she has indicated that the complainant has engaged in persistent avoidance of the abuse in his past and this is a feature of post-traumatic stress disorder. She indicates that he still suffers from symptoms of the traumatic event of child sexual abuse and that he never sought counselling or therapy. She indicates that his fear and embarrassment is still there. The trigger to his reporting was the phone call from his father.
JM has sworn an affidavit in which he refers to the fact that the applicant assaulted him and other boys in his class on a regular basis. He has given a graphic description of the abuse in his statement to the Gardaí, which is exhibited before this court. He has indicated his efforts to confront the applicant in the relatively recent past, and in this regard he indicated that he sought to challenge the applicant. He says:
"None of us ever talked about Haran doing this to us. I was going to challenge Sean Haran about this abuse for years and years. I must have passed his front door at Killester Avenue over 50 times but couldn't get the courage to call on him, but I was always going to challenge him about this. I remember watching a programme on RTÉ television about sexual abuse on the Late Late Show. The show hosted a coloured man in his forties, telling his own story about being sexually abused a school and the way he dealt with it through his life."
"I was impressed by the way he had courage to speak about it and he felt better by exposing it. I felt if I tackled my fears and anger against Sean Haran, head-on, I would end these fears and angers and get some of my dignity and manhood bravery back. This has affected me all my life."
Then he refers to the events that he took in this regard on the year prior to making his statement to the Gardaí of confronting the applicant in his home.
Notwithstanding that fact, he said that he remembers being very anxious, or even shocked, at the prospect of meeting the applicant, to whom he refers to as "this beast", he says: "I waited 30 odd years to do this and eventually I was almost there." He indicated that he had had a sleepless night and went to the house in question. He sought to confront the applicant. He says that he left the house angry.
it is quite clear from the evidence contained in the Book of Evidence to which this complainant has referred and adopted that he had difficulty in confronting the applicant.
He has also indicated in his statement to the Gardaí the situation where he reported, apparently at the age of 8 years of age, the abuse to his mother, and the fact that this was brought to his father's attention. It does appear from his statement that he had broken his tooth and cut his upper lip in the context of the abuse. His mother asked him about this and why he was late home. He says that his mother went crazy. She was worried about him when she saw him "busted up". He told her exactly what Sean Haran had done to him and that the busted lip was as a result of him trying to avoid having to have oral sex with him against his will. He indicates that she did not believe him and he had to tell her over an over again. when she eventually believed him, she brought him around to a Garda which they knew.
He has identified an individual, who he says was stationed in Coolock Garda station. He says that his mother explained to him what he had told his mother, and so did he, and that they were advised to call up to Coolock Station and report this matter to the man at the desk. He says that his mother walked up and he remembered his mother telling a uniformed Garda about the applicant sexually assaulting him in school. He remembers his mother shouting at him. He doesn't recall what the Garda said to her but there was a lot of shouting. Then he states his current belief in relation...
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